United States v. Velasco-Mares

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 14, 2021
• Docket: 20-2179
• Status: Unpublished

Opinion

Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 14, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-2179 (D.C. No. 2:20-CR-00456-WJ-1) BARBARA VELASCO-MARES, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, McHUGH, and CARSON, Circuit Judges. _________________________________

Barbara Velasco-Mares appeals her 33-month sentence for unlawful reentry of

a previously removed alien in violation of 8 U.S.C. § 1326. She claims the district

court’s denial of a downward departure rendered her sentence substantively

unreasonable. Exercising jurisdiction under 18 U.S.C. § 3742(a)(1) and 28 U.S.C.

§ 1291, we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 2

I

Velasco-Mares pleaded guilty under a plea agreement in which the parties

stipulated to a within-guidelines sentence and Velasco-Mares agreed not to seek a

downward adjustment. The presentence investigation report (PSR) determined her

offense level was 13, which reflected a two-point reduction under the federal

sentencing guidelines for the early disposition of her case. See U.S. Sentencing

Guidelines Manual § 5K3.1 (U.S. Sentencing Comm’n 2018). The PSR also

determined her criminal history category was IV due to her extensive criminal record,

which includes prior convictions for theft, delivery of marijuana for payment, being a

felon in possession of firearms, and two previous convictions for unlawful reentry

after removal. Based on an offense level of 13 and criminal history category of IV,

her advisory guidelines range was 24-30 months in prison.

Because the sentencing range was higher than Velasco-Mares anticipated, she

moved to withdraw her guilty plea or, alternatively, to set aside the plea agreement so

she could seek a downward departure or variance. She also filed a motion for a

downward departure or variance, arguing that a sentence of time served, or 8 months,

was appropriate because the PSR overrepresented her criminal history and

exaggerated the seriousness of her prior offenses. Although Velasco-Mares did not

object to the PSR’s factual basis for her prior convictions, she argued that most of

2 Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 3

them were more than fifteen years old and that the PSR failed to account for her

personal characteristics, including her cultural assimilation, removal, and age.1

The district court denied Velasco-Mares’ request to withdraw her guilty plea

but granted her request to set aside the plea agreement. Without the plea agreement,

however, Velasco-Mares lost the 2-point reduction in her offense level under USSG

§ 5K3.1. With a new offense level of 15 and the same criminal history category of

IV, her advisory guideline range was 30-37 months. At sentencing, the district court

declined to grant a downward adjustment and sentenced her to 33 months in prison

followed by three years of supervised release. Velasco-Mares now contends the

denial of a downward adjustment rendered her sentence substantively unreasonable.2

II

We review the substantive reasonableness of a sentence for an abuse of

discretion. See United States v. Smart, 518 F.3d 800, 805 (10th Cir. 2008).

1 “Cultural assimilation” refers to a defendant’s cultural and familial ties to the United States, which are considered among a defendant’s history and characteristics under 18 U.S.C. § 3553(a)(1). See United States v. Galarza-Payan, 441 F.3d 885, 889 (10th Cir. 2006). 2 To the extent Velasco-Mares challenges the district court’s discretionary decision to deny a downward departure, we lack jurisdiction to consider her arguments, although we do have jurisdiction to consider the reasonableness of her sentence, and in doing so we will consider her reasons for seeking a departure. See United States v. Chavez-Diaz, 444 F.3d 1223, 1229 (10th Cir. 2006) (“[W]hile we do not have jurisdiction to review the district court’s discretionary decision to deny a downward departure, we have jurisdiction . . . to review the sentence imposed for reasonableness[,]” . . . “which . . . necessarily requires that we take into account the defendant’s asserted grounds for departure when reviewing the sentence for reasonableness.”). 3 Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 4

“Substantive reasonableness involves whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth in

18 U.S.C. § 3553(a).” United States v. Conlan, 500 F.3d 1167, 1169 (10th Cir.

2007). “We do not reweigh the sentencing factors but instead ask whether the

sentence fell within the range of rationally available choices that facts and the law at

issue can fairly support.” United States v. Blair, 933 F.3d 1271, 1274 (10th Cir.

2019) (internal quotation marks omitted). A sentence within a properly calculated

guideline range is presumptively reasonable. Id. A sentence is substantively

“unreasonable only if it is arbitrary, capricious, whimsical, or manifestly

unreasonable.” United States v. Gantt, 679 F.3d 1240, 1249 (10th Cir. 2012)

(internal quotation marks omitted).

Velasco-Mares contends that her sentence is unreasonable because the PSR

overstated her criminal history.3 She also says a lower sentence was justified by her

personal characteristics, including her serious health problems, cultural assimilation,

removal, and age. These arguments are unavailing, however, because the district

court considered these factors in its § 3553(a) analysis.

3 Velasco-Mares’ theory on appeal appears to have shifted slightly. In the district court, she principally argued that the PSR overstated her criminal history because her prior convictions occurred long ago. See, e.g., R., vol. 1 at 36 (arguing that all but one of her convictions were more than 15 years old). Now on appeal, however, she claims the PSR overstated her criminal history because she committed only non-violent offenses for which she received relatively lenient sentences. See, e.g., Aplt. Br. at 12; Reply Br. at 1. We generally do not consider new theories raised on appeal, and to the extent Velasco-Mares pivots to a new theory, we decline to consider it. See United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019). 4 Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 5

Indeed, the district court recognized that Velasco-Mares sought a downward

adjustment based on her cultural assimilation, removal, and age. The court also

heard her claim that she contracted Covid-19 three times while in custody. But the

court observed that, with a potential statutory maximum sentence of 20 years in

prison, the crime of unlawful reentry by a previously removed alien is a serious

offense, and yet this was Velasco-Mares’ third such conviction, demonstrating her

lack of respect for the law. The court therefore stated that her sentence needed to

reflect the seriousness of the offense, promote respect for the law, provide for a just

punishment, and deter further recidivism. See 18 U.S.C. § 3553(a)(2)(A), (B). The

court acknowledged her explanation that she was drawn to the United States to be

with family, but the court noted that her inability to reside here legally was due to her

own criminal conduct, which included multiple convictions and probation violations.

See id. § 3553(a)(1).

The district court was particularly concerned with Velasco-Mares’ conviction

for being a felon in possession of a firearm. As the court recounted, her son brought

a loaded firearm to his elementary school and after school officials contacted police,

her son told the police he had additional items in his backpack, which contained a

pistol and 30 rounds of ammunition. Thereafter, the police went to Velasco-Mares’

residence and recovered from a dumpster in front of her home a pillowcase

containing firearms, ammunition, and holsters. Although she admitted to police at

the time that she knew the guns were in her home and that the children were

pretending to shoot each other, during allocution she attempted to deny that she

5 Appellate Case: 20-2179 Document: 010110618771 Date Filed: 12/14/2021 Page: 6

allowed the children to play with firearms and claimed she was a victim. The district

court pointed out, however, that she did not object to the factual basis of the PSR,

and thus the district court stated, “I don’t consider her a victim,” R., vol. 4 at 28.

Moreover, given her criminal history and the danger underlying this incident, the

district court indicated her sentence should reflect the need to protect the public from

further crimes by Velasco-Mares. See 18 U.S.C. § 3553(a)(2)(C).

Finally, the district court found nothing about this case that warranted a below-

guidelines sentence. Although Velasco-Mares argued that most of her convictions

were old, the court noted that no criminal history points were assessed for either of

her two theft convictions or her felon-in-possession-of-a-firearm conviction and thus

a criminal history category of IV did not overrepresent her record, particularly given

the severity of her offenses. The court also recognized that the government requested

a sentence at the upper end of the guidelines—37 months—but the court noted that

she had originally qualified for a lower sentencing range under her early disposition

plea agreement. After weighing all of these considerations, the court concluded that

a mid-range guideline sentence of 33 months was sufficient but not greater than

necessary to achieve the goals of sentencing. Velasco-Mares has identified nothing

to suggest that her sentence is substantively unreasonable.

Accordingly, the district court’s judgment is affirmed.

Entered for the Court

Carolyn B. McHugh Circuit Judge